Shobha
Suresh Jumani Vs. Tribunal, Forfeited Property & Anr [2001] Insc 272 (4 May 2001)
B.N.
Agrawal, M.B. Shah & Ruma Pal Shah, J.
L.I.T.J
Short
question requiring consideration in this appeal iswhether wife whose husbands
property is ordered to be forfeited under the Smugglers And Foreign Exchange
Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as the
SAFEMA) is entitled to file an appeal as person aggrieved under Section 12(4)
of the Act? Before dealing with the contentions, facts in nutshell are that the
Government of India issued detention order dated 16.11.1995 under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974 (hereinafter referred to as the COFEPOSA) against one Suresh Manoharlal Jumani,
resident of Khar (West), Mumbai.
It
appears that the order of detention was not implemented as he was absconding.
However, his detention order is neither revoked nor quashed by any court of
competent jurisdiction. Thereafter, in exercise of powers conferred under
sub-section (1) of Section 6 of the SAFEMA, competent authority issued notice
dated 31.12.1996 to Suresh Manoharlal Jumani and his wife Smt. Shobha Suresh Jumani
to show cause why the properties mentioned therein should not be declared to be
illegally acquired properties and forfeited to the Central Government under the
Act. The competent authority divided the properties in two parts(1) standing in
the name of detenue i.e. properties mentioned as Items No.1 to 6; and (2)
properties mentioned as Items No.7 and 8, which were standing in the name of
appellant.
Notice
to the appellant was issued as two properties were standing in her name and as
she was considered to be covered by the provisions of Section 2(2)(c) of the
SAFEMA. After giving opportunity of hearing and of producing relevant material
evidence, competent authority by order dated 23.8.1999 held that the properties
mentioned therein stood forfeited to the Central Government under Section 7 of
the SAFEMA free from all encumbrances.
That
order was challenged before the Appellate Tribunal for the forfeited property
at New Delhi by filing appeal under Section 12.
By order dated 5.1.2000, with regard to the forfeited property, i.e. Item Nos.
1 to 6 which were in the name of detenue, the Tribunal directed that as the detenue
has not filed the appeal, the appeal was not maintainable and the counsel
should confine his arguments only in respect of Items No.7 and 8. The learned
counsel sought time for making his submission and the matter was adjourned to
4.2.2000. On 4.2.2000 the matter was heard qua Items No.7 and 8 which were
standing in the name of the appellant and the appeal was dismissed on 8.2.2000.
Thereafter,
appellant preferred Miscellaneous Petition No.17/Bom of 2000 in FPA No.
40/BOM/99 for reviewing the order on the ground that the appellant was having
interest in Items No.1 to 6 as she had vested right of maintenance from her
husband and his properties, and, therefore, she was person aggrieved. That
contention was negatived by the Tribunal by order dated 22.2.2000. The High
Court of Bombay by order dated 6.2.2000 dismissed Crl. Writ Petition No.653 of
2000 challenging the order passed by the Tribunal.
Hence,
this appeal.
At the
time of hearing of this matter, learned counsel Mr. H.L. Tiku appearing on
behalf of the appellant submitted that the order passed by the Tribunal is
illegal and erroneous because any person aggrieved by an order of the competent
authority is entitled to file an appeal under Section 12(4) of the SAFEMA and
appellant being wife of the detenue is an aggrieved person. He also submitted
that the appellant apart from being wife is also entitled to have charge for
maintenance from the properties which are forfeited and, therefore, she is
person aggrieved by the order of the competent authority.
First
we would reiterate that the words any aggrieved person are found in several
statutes. However, the meaning of the expression aggrieved may vary according
to the context of the enactment in which it appears and all the circumstances.
In Sidebotham, Re, ex p Sidebotham [(1880) 14 Ch D 458, at page 465)], it was
observed by James, L.J.:
But
the words person aggrieved do not really mean a man who is disappointed of a
benefit which he might have received if some other order had been made. A
person aggrieved must be a man who has suffered a legal grievance, a man
against whom a decision has been pronounced which has wrongfully deprived him
of something or wrongfully refused him something, or wrongfully affected his
title to something.
The
said passage was referred to and relied upon by this Court in Thammanna v. K. Veera
Reddy, [(1980) 4 SCC 62] and Northern Plastics Ltd. v. Hindustan Photo Films
Mfg. Co. Ltd. and Others, [(1997) 4 SCC 452].
For
deciding whether the appellant-wife could be said to be person aggrieved in
context of the scheme and statutory provisions, we would refer to the objects
and reasons of the Act and also relevant provisions. The Preamble of the SAFEMA
reads thus: - An Act to provide for the forfeiture of illegally acquired
properties of smugglers and foreign exchange manipulators and for matters
connected therewith or incidental thereto.
Whereas
for the effective prevention of smuggling activities and foreign exchange
manipulations which are having a deleterious effect on the national economy it
is necessary to deprive persons engaged in such activities and manipulations of
their ill-gotten gains;
And
whereas such persons have been augmenting such gains by violations of
wealth-tax, income-tax or other laws or by other means and have thereby been
increasing their resources for operating in a clandestine manner;
And
whereas such persons have in many cases been holding the properties acquired by
them through such gains in the names of their relatives, associates and
confidants.
(Emphasis
added) Whole emphasis in the Preamble is on the forfeiture of illegally
acquired property by the smugglers and foreign exchange manipulators as such
ill-gotten gains have a deleterious effect on the national economy. Further,
even though such persons may be holding illegally acquired properties in the
name of their relative, associates and confidence, such properties are also to
be forfeited.
Thereafter,
Sub- section (1) of Section 2 provides that the Act would apply only to persons
specified in sub-section (2). Sub-section (2) categorises such persons as (a)
person convicted under the Customs Act, Foreign Exchange Regulations Act, as
stated therein, or (b) person against whom an order of detention has been made
under COFEPOSA, or (c) person who is a relative of person referred to in clause
(a) or (b), or (d) every associate of person referred to in clause (a) or (b),
or (e) any holder of the property which was at any time previously held by a
person referred to in clause (a) or clause (b) unless by purchase or in good
faith for consideration.
Explanations
II and III provides for the meaning of the words relative and associate
respectively. Relative includes spouse of the person. At this stage, we would
mention that there appears to be some mistake in omitting the persons who are
convicted for the offence under the Prevention of Corruption Act, 1988 even
though, illegally acquired property is given exhaustive meaning under clause
(c) of Section 3(1) of the Act to mean any property acquired by `such person
wholly or partly out of or by means of any income, earnings or assets derived
or obtained from or attributable to any activity prohibited by or under any law
for the time being in force relating to any matter of which Parliament has
power to make laws. The definition gives further inclusive meaning with which
we are not concerned at present. Section 4 prohibits holding of illegally
acquired property by providing it shall not be lawful for any person to whom
this Act applies to hold any illegally acquired property either by himself or
through any other person on his behalf. Sub- Section (2) provides that such
property shall be liable to be forfeited to the Central Government in
accordance with the provisions of the Act. The procedure is prescribed under
Sections 6 and 7 of the Act. Section 6 provides for issuance of show cause
notice to `such person who is holding illegally acquired properties. As stated
above such person would be the person who is covered by the inclusive
definition under Section 2(2)(c) of the Act. It also provides for issuance of
notice to the other person who holds the property on behalf of `such person.
Thereafter, Section 7 makes it clear that the person affected is person who
holds such properties. As per sub-Section (1) of Section 7, the competent
authority is required to determine whether the properties in question are
illegally acquired properties by the `person affected. Secondly, in a case
where a person affected holds any property specified in the notice through any
other person after giving opportunity of hearing to such other person, the
competent authority is required to determine whether all or any of the
properties in question are illegally acquired properties. Sub-section (1) of
Section 7 reads as under: -
7.
Forfeiture of property in certain cases. (1) The competent authority may, after
considering the explanation, if any, to the show-cause notice issued under
Section 6, and the materials available before it and after giving to the person
affected (and in a case where the person affected holds any property specified
in the notice through any other person, to such other person also) a reasonable
opportunity of being heard, by order, record a finding whether all or any of
the properties in question are illegally acquired properties.
From
this sub-section it is clear that for the purpose of the Act, Section 7 categorises
properties in two parts (1) properties held by the person affected and (2) the
person affected holding the property through any other person. Further Section
12 deals with procedure for filing appeal before the Appellate Tribunal.
Sub-section (4) provides that any person aggrieved by an order of the competent
authority made under Section mentioned therein may, within forty-five days from
the date on which the order is served on him, prefer an appeal to the appellate
Tribunal.
From
the aforesaid scheme of the Act, `any person aggrieved by an order of the
competent authority would mean person whose property is held to be illegally
acquired under the Act and which is to be forfeited or whose legal rights qua
the said property are adversely affected. According to Blacks Law Dictionary,
aggrieved party refers to a party whose personal, pecuniary or property rights
have been adversely affected by another persons actions or by a courts decree
or judgment.Also termed party aggrieved;
person
aggrieved. Therefore, a relative or associate, who has no interest or right in
such property can not be held to be a person aggrieved. It is true that wife
may be aggrieved because her husbands properties are forfeited.
But
that would not confer a right to file an appeal against such order. There is no
infringement of her legal right.
For
the purposes of the Act husband and wife are different entities. If the
properties standing in the name of relative or associate are forfeited on the
ground that smugglers or foreign exchange manipulators were holding the said
properties in their names or that such properties are legally acquired, then to
that extent, for challenging the said finding, the relative or associate can be
held to be person aggrieved by the order of the competent authority.
But, a
relative or associate can not be considered to be aggrieved if the properties
belonging to the smuggler of Foreign Exchange manipulator are forfeited under
the Act.
Learned
counsel for the appellant, however, submitted that Hindu wife would be having
interest in her husbands property as she is having right of maintenance from
her husbands property. For this purpose, learned counsel referred to Sections
18, 23 and 27 of the Hindu Adoption and Maintenance Act, 1956. Section 18 only
provides that Hindu wife shall be entitled to be maintained by her husband
during her life time and if she is staying separately as provided under
sub-section (2), she is entitled to claim maintenance from her husband. Section
23 deals with the determination of the amount of maintenance. Section 27
provides that dependants claim for maintenance under the Act shall not be a
charge on the estate of the deceased or any portion thereof, unless one has
been created by the will of the deceased, by a decree of court, by agreement
between the dependant and the owner of the estate or portion, or otherwise.
Section 28 further provides that where a dependant has a right to receive
maintenance out of the estate and if such estate is transferred, the right to
receive maintenance may be enforced against the transferee, if the transferee
has notice of such right or if the transferee is gratuitous. At this stage, we
would make it clear that the word `dependant is defined under Section 21 to
mean relatives of the deceased, namely,
(1) his
or her father;
(2) his
or her mother;
(3) his
widow,
so
long as she does not remarry but does not include the wife whose husband is
surviving. In any case admittedly no charge for maintenance was created in favour
of the appellant on the properties which are forfeited. She has not suffered
any legal grievance and has no legal peg for a justiciable claim to hang on.
Hence, there is no substance in the contention raised by the learned counsel
for the appellant.
Before
parting with the judgment, we would observe that it is difficult to comprehend
the reason for not including a person who is convicted under the Prevention of
Corruption Act, 1988 in the definition of Section 2(2)(c) of the Act.
It
appears that for controlling the cancerous growth of corruption apart from
further deterrent provisions, illegally acquired properties by means of corrupt
practices could be forfeited under the provisions by suitable amendment in the
Act. The question whether the time is ripe for such amendment or not is to be
decided by the Legislature. However, we cannot turn our eyes to the fact that
because of mad race of becoming rich and acquiring properties overnight or
because of ostentatious or vulgar show of wealth by few or because of change of
environment in the society by adoption of materialistic approach, cancerous
growth of corruption and illegal gains or profits has affected the moral
standards of the people and all forms of governmental administration. It is to
be mentioned that under the Indian Penal Code, various punishments are provided
in Section 53 which include forfeiture of property and Sections 61 and 62 provided
sentence of forfeiture of property. However, sections 61 and 62 were deleted by
Indian Penal Code (Amendment) Act, 1921. But considering the situation
prevailing in the society, it appears that the said provisions are required to
be re-introduced so as to have deterrent effect on those who are bent upon to
accumulate wealth at the cost of the society by misusing their post or power.
We hope that the Legislature would consider this aspect appropriately.
In the
result, the appeal is dismissed.
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